I. v. Department of Education
Filing
46
ORDER DENYING MOTION FOR RECONSIDERATION 37 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/14/11. ("Any such briefing that Marcus's mother may seek to address to this court should be by way of motion filed no later than Jun e 30, 2011.") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARCUS I., by and through his )
parent and next best friend, )
KAREN I.,
)
)
Plaintiff,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION,
)
State of Hawaii,
)
)
Defendant.
)
_____________________________ )
CIVIL NO. 10-00381 SOM/BMK
ORDER DENYING MOTION FOR
RECONSIDERATION
ORDER DENYING MOTION FOR RECONSIDERATION
The court has reviewed the Motion for Reconsideration
filed by Plaintiff Karen I., mother of Marcus I, asking the court
to reconsider its Order Partially Vacating and Remanding the
Hearings Officer’s June 9, 2010, Decision.
See ECF No. 37.
The
motion is denied.1
1
Marcus’s mother also filed a Notice of Appeal on June 6,
2011, attempting to appeal the same order. See ECF No. 39.
However, Marcus’s mother sought no Rule 54(b) certification or
certificate permitting an interlocutory appeal be taken from this
court. See Fed. R. Civ. P. 54(b); 28 U.S.C. § 1292(b). Whether
the order remanding the case to the Hearings Officer may be
appealed has not been addressed in the present case. See 28
U.S.C. §§ 1291, 1292; cf. Collord v. U.S. Dep’t of Interior, 154
F.3d 933, 935 (9th Cir. 1998) (explaining the limited
circumstances under which a district court’s remand order may be
appealed). If the court’s remand order is not a final judgment,
then the appeal is premature. If it turns out the court’s order
is an appealable final judgment, then the Motion for
Reconsideration is properly construed as a motion to alter or
amend judgment, which effectively divests the circuit court of
jurisdiction until the motion is disposed of. See Fed. R. App.
P. 4(a)(iv); Fed. R. Civ. P. 59(e). Either way, the filing of
the Notice of Appeal did not divest this court of its
jurisdiction to decide the present motion.
A party may ask the court to reconsider and amend a
previous order pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure.
Reliance Ins. Co. v. Doctors Co., 299 F. Supp.
2d 1131, 1153 (D. Haw. 2003).
Rule 59(e) offers “an
‘extraordinary remedy, to be used sparingly in the interests of
finality and conservation of judicial resources.’”
Reliance, 299
F. Supp. 2d at 1153 (quoting Carroll v. Nakatani, 342 F.3d 934,
945 (9th Cir. 2003)).
Reconsideration under Rule 59(e) is
appropriate only when “(1) the district court is presented with
newly discovered evidence, (2) the district court committed clear
error or made an initial decision that was manifestly unjust, or
(3) there is an intervening change in controlling law.”
United
Nat’l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772, 780
(9th Cir. 2009) (quotation marks omitted); accord Local Rule 60.1
(setting forth substantively identical standard for
reconsideration of interlocutory orders).
“Mere disagreement with a previous order is an
insufficient basis for reconsideration.”
F. Supp. 2d 1271, 1274 (D. Haw. 2006).
White v. Sabatino, 424
Nor may the
reconsideration motion be “based on evidence and legal arguments
that could have been presented at the time of the challenged
decision.”
Comeaux v. Hawaii, Civ. No. 06-00341 SOM/BMK, 2007 WL
2300711, at *1 (D. Haw. Aug. 8, 2007) (citation omitted).
“Whether or not to grant reconsideration is committed to the
2
sound discretion of the court.”
White, 424 F. Supp. 2d at 1274
(citing Navajo Nation v. Confederated Tribes & Bands of the
Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)).
Although Marcus’s mother may disagree with the court’s
rulings, the Motion for Reconsideration must be denied because it
raises no new evidence, no intervening change in the law, and no
manifest error of law or fact.
Her argument that the Hawaii
Administrative Rules required the DOE to offer an “appropriate
setting,” and not a particular school, Mot. 5-6, merely repeats
her prior briefing.
And Union School District v. Smith, 15 F.3d
1519 (9th Cir. 1994), does not represent new law requiring
reconsideration of the court’s order affirming denial of
residential placement to Marcus.
See Mot. 7-8.
Marcus’s mother also complains that remanding the case
will necessarily require DOE witnesses to provide inadmissible
lay opinion testimony regarding what other agencies might be
available to help implement Marcus’s IEP.
mischaracterizes the court’s order.
Mot. 4-5.
This
The order merely directs the
Hearings Officer to determine whether Baldwin High School would
have been able to implement aspects of Marcus’s 2009 IEP for the
2009-10 school year.
The court’s order nowhere directs or
requires the Hearings Officer to obtain lay opinion testimony,
admissible or inadmissible, from DOE witnesses.
How the Hearings
Officer receives evidence is not specified in the court’s order,
3
and Marcus’s mother remains free to make appropriate objections
on remand.
The reply brief for this Motion requests that the court
issue a “stay put” order.
§ 1415(j).
See Reply 1-2, ECF No. 45; 20 U.S.C.
This issue is not properly before the court.
The
court recalls that Marcus’s mother orally raised the issue of
stay put at the hearing on April 25, 2011, concerning Marcus’s
appeal.
See Minutes, ECF No. 33.
After a discussion with the
parties, the court instructed the parties to meet and confer
regarding whether there was a need for a judicial stay put order
in this case.
The court explained that, if such an order was
required, Marcus’s mother would need to bring a separate motion
because the stay put issue had not previously been raised or
briefed by either party.
Marcus’s mother submitted no new
motion.
The court declines to construe this request as a proper
motion.
It was raised for the first time in a reply brief to a
Motion for Reconsideration, and an appeal of the court’s earlier
order is already pending.
If Marcus’s mother would like to
request a stay put order, she will need to submit proper briefing
before this court that (1) argues the legal merits of the motion,
(2) addresses the outcome of the parties’ meeting(s) regarding
the stay put issue, and (3) addresses the jurisdictional question
of whether the court may enter a stay put order, given the remand
4
to the Hearings Officer and the pending appeal to the Ninth
Circuit.
Finally, the court denies Marcus’s mother’s request
that the case be assigned to Judge David Alan Ezra if it is again
appealed after the remand.
Pursuant to Local Rule 40.2, when
cases “involve the same or substantially identical transactions,
happenings, or events, or the same or substantially the same
parties . . . or subject matter,” the cases may be assigned at
the outset to the same judge.
There is no question that a new
appeal to this court following the present remand to the Hearings
Officer would involve “the same or substantially identical”
happenings, events, or parties at that time as it does now.
Indeed, the court is ordering a remand merely so that the
Hearings Officer may answer two specific questions posed by this
court regarding Marcus’s 2008 PWN and 2009 IEP.
Because any new
appeal to this court would be related to the present case, there
would be no impropriety in assigning the new appeal to the same
judge.
The court recognizes that Local Rule 40.2 does not
require assignment to the same judge, and random assignment to
another judge would not violate Local Rule 40.2.
Marcus’s mother specifically requests Judge Ezra.
However,
Without citing
to anything in the record of this case, Marcus’s mother says that
the present judge “appears to be biased in its assessment of the
5
evidence” and argues that Marcus “is entitled to an unbiased
disposition of the issues in this matter.”
Mot. 8-9.
Marcus’s
mother asks that this judge recuse herself in a further
“inevitable” appeal.
Marcus’s mother also complains that “[t]he
Court in this case . . . has previously allowed the attorneys for
the DOE to either re-brief their weak arguments or as in this
matter, to have the case remanded in an effort to bolster their
client’s position.”
Mot. 8.
This court is not certain what
gives rise to the reference to rebriefing of weak arguments, as
Marcus’s mother does not point to specific “rebriefing” in this
case.
If Marcus’s mother is referring to supplemental briefs
ordered in other actions, then this court recollects an instance
in which the court ordered supplemental briefing by all parties
on a matter a student was advancing but that the student had
mentioned only in the conclusion of a brief, without any analysis
or citation.
Thus, that rebriefing was designed to allow the
student to support an argument.
Contrary to Marcus’s mother’s
assertion, this court, in ordering a remand in the present case,
has no expectation or desire to disadvantage Marcus or to assist
the DOE.
It is precisely because the court cannot determine
certain matters that it has ordered a remand, which may turn out,
for all this court knows, to be beneficial to Marcus.2
2
Arguing that the remanded issues have already been
sufficiently addressed, Marcus’s mother, at page 5 of the
reconsideration motion, has an italicized paragraph that appears
6
The Motion for Reconsideration is DENIED.
If Marcus’s
mother desires a resolution of the stay put issue, the court
repeats its earlier direction that the parties confer on the
matter.
If the parties are in agreement, then a ruling on the
matter is unnecessary.
If the parties disagree, then briefing on
the areas of disagreement is appropriate, including briefing on
the issue of whether this court retains jurisdiction over the
issue.
Any such briefing that Marcus’s mother may seek to
address to this court should be by way of motion filed no later
than June 30, 2011.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 14, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Marcus I. v. Department of Education; Civil No. 10-00381 SOM/BMK; ORDER DENYING MOTION
FOR RECONSIDERATION
to be a quotation of an administrative finding but that does not
appear in the Hearings Officer’s decision.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?